It's a Different Battle, but a Similar Struggle
Tobias Barrington Wolff, EQUAL JUSTICE SOCIETY
Saturday, March 19, 2005
San Francisco Superior Court Judge Richard Kramer made a bold choice in Monday's opinion recognizing the equal right of gay couples to marry: He invoked Brown v. Board of Education and the American legacy of segregation to explain a part of his ruling.
Isn't it sufficient, the state had asked in its briefs, to allow gay couples to enter into "domestic partnerships" with all the basic rights of marriage under a different name? Absolutely not, responded Kramer in his decision, because such a "separate but equal" institution would give gay people a "feeling of inferiority as to their status in the community" — the same type of harm that segregated students experienced under Jim Crow and that led the U.S. Supreme Court in 1954 to outlaw school segregation.
It was bold to wrap the marriage ruling in the mantle of Brown because, frankly, many blacks take offense when people draw parallels between gay rights and the issue of race in the United States. The comparison, many say, feels like a misappropriation of their history. The problem is made worse by the fact that the public face of the gay community is too often exclusively white.
I come to the issue as both a gay white man and a constitutional scholar who has tried hard to understand the history of slavery and Jim Crow in our nation. From that vantage, I see the need for more care on all sides in making these arguments.
First, there is a historical reality that we must acknowledge. The oppression of gay people in the United States is not morally equivalent to the oppression that black Americans have endured. It just isn't. I cringe when gay people, rightly outraged at the discrimination that they face, take that extra step and say, "Excluding us from the right to marry is like telling us that we're three-fifths of a person."
This nation's treatment of black Americans is its defining, original sin. Black people survived 250 years of chattel slavery and a century more of segregation, disenfranchisement and lynchings.
The effect of that history continues to define their struggle for equal opportunity and advancement. Only the genocide of Native Americans occupies a similar place in the nation's moral ledger.
When the Supreme Court declared in Brown that the tradition of "separate but equal" has no place in our public institutions and recognized individual dignity as a constitutional value that must be respected, that statement was uniquely the result of the black experience in the United States.
But the enduring power of Brown derives from the fact that its principles are not limited to black Americans. In the same year that the court decided Brown, it also recognized the right of Mexican Americans to equal citizenship through jury service. Within 20 years, the court had applied those same principles to women and religious minorities. And just two years ago, in Lawrence v. Texas, the court finally began to recognize the equal dignity of gay Americans when it struck down the sodomy laws that had sought to criminalize their relationships.
Gay people do have a right to claim a place in that constitutional tradition. The second-class citizenship that gay people continue to endure may not be as bad as Jim Crow and slavery, but it is bad enough.
Excluded from open military service, unable to claim federal workplace protection and denied equal support for their families in most parts of the country, gay people can have little doubt what it means for their place within the community when the state refuses to allow them to marry.
Gay people enter a house built by the labor of others when they invoke the tradition of Brown, and they should claim that place with a degree of humility. Nonetheless, they have earned that place through blood and tears. It is no threat to the legacy of the civil rights movement to recognize their claim. It is a vindication.
Thus, the San Francisco court was correct to rely upon Brown in analyzing the exclusion of gay couples from civil marriage. Brown does not require us to ask who among us is the most oppressed. It requires us to ask how discrimination against any group of people affects their status as equal citizens.
Wolff, a professor at University of California, Davis Law School, is on the executive board of the Equal Justice Society, a civil rights advocacy group. He wrote this column for the Los Angeles Times.